Monday, June 10, 2013

How the CIC missed the wood for the trees

The Right to Information Act, 2005, with its 31 sections and two schedules, is one of the outstanding legislations of Indian Parliament.   In view of its inherent potential to ensure accountability of the institutions of governance, and enhance the level of participation of citizens in the administration, there has been a natural tendency on the part of the Central Information Commission, to interpret its provisions liberally.   This has manifested in a number of pro-citizen rulings from the CIC and the appellate courts leading to a greater degree of transparency over decision-making of authorities, than what was possible earlier.

An expansive understanding of the definition of ‘public authority’ under the Act has apparently helped the CIC to bring many quasi-public authorities and private entities with substantial funding from the Government within the Act’s ambit.   As the Act requires the `public authorities’ to declare information about them suo motu, and to designate Public Information Officers to answer queries from information-seekers, the definition and interpretation of ‘public authorities’ determines the scope of the Act.

The CIC’s June 3 order bringing political parties within the ambit of public authorities, no doubt, stems from its sound objectives to make political parties, receiving substantial indirect funding from the Government, accountable, and empower citizens to use the Act to ensure it.  However, the legal reasoning adopted in the order, is vulnerable and may not stand scrutiny in the appellate courts.

The crucial question is whether a political party can be held as ‘public authority’  under Section 2(h) of the Act.  This provision deserves to be reproduced verbatim: “public authority” means any authority or body or institution of self-government established or constituted,- (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any – (i) body owned, controlled or substantially financed; (ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.”

If one reads Section 2(h) carefully, there can be no argument over its first four parts, that is, (a) to (d).  The problem arises only with regard to the use of the expression “and includes any”, followed by (i) and (ii) under (d).

The CIC relies on the Delhi High Court’s judgment delivered by Justice Ravindra Bhat in Indian Olympic Association v.Veeresh Malik and Others (January 7, 2010), wherein the Court has observed that the expression ‘public authority’ has to be interpreted liberally and not restrictively. 

In this judgment, the High Court has conceded that a facial interpretation  of Section 2(h) would indicate that even the bodies brought in by the extended definition, that is, through the use of the words “and includes any” are to be constituted under, or established  by a notification, issued by the appropriate Government. 

The court then added as follows: “If, indeed, such were the intention, sub clause (i) is a surplusage, since the body would have to be one of self-government, substantially financed, and constituted by a notification, issued by the appropriate government.  Secondly – perhaps more importantly, it would be highly anomalous to expect a ‘non-government organisation’ to be constituted or established by or under a notification issued by the Government.  These two internal indications actually have the effect of extending the scope of the definition  “public authority”; it is, thus, not necessary that the institutions falling under the inclusive part have to be constituted, or established under a notification issued in that regard....irrespsective of the constitution (i.e. it might not be under or by a notification), if there was substantial financing, by the appropriate government, and ownership or control, the body is deemed to be a public authority.  This definition would comprehend  societies, cooperative societies, trusts and other institutions where there is control, ownership,  (of the appropriate government) or substantial financing.  The second class, i.e., non-government organisation, by its description, is such as cannot be “constituted” or “established” by or under a statute or notification.” 

Note that in its list of what the definition of ‘public authority’ would include, the High Court lastly mentions “other institutions”.  Individual political parties do not qualify to be called institutions; party system does.  As party system cannot constitute an independent entity, the question of considering it a public authority does not arise.

The registration of political parties under Section 29A of the  Representation of People Act, 1951, refers to political parties before their registration, as “an association or body of individual citizens calling itself a political party”.  The implication here is that once registered, they cease to become an association or body of individual citizens, and become political parties, with certain unique rights and responsibilities, which the R.P.A bestows on them. 

Therefore, there is an element of doubt whether the “body” referred to in Section 2 (h) (i) includes or could include a political party.    The principle of ‘surplasage’, used by the High Court to give meaning to Section 2(h)(d)(i)  is a recognised rule of interpretation.  It requires that effort should be made to give meaning to each and every word used by the Legislature.  The Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons.

But the rule cannot be invoked, as the CIC has done, to interpret a provision, so as to include what the legislature did not intend to include at the time of enactment.  Otherwise, the courts may invite the criticism of wrongly resorting to casus omissus, that is, a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as to do so will be legislation and not construction. 

The Supreme Court’s constitution Bench reiterated this principle in a judgment on August 23, 2001 (Daddi Jagannathamv. Jammulu Ramulu): “Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”

The CIC, which acts as a Court while deciding a matter before it, has not demonstrated that Parliament unintentionally omitted to include political parties under Section 2(h)(d)(i); instead, it has assumed that Parliament intended to include political parties under the provision, without making a detailed inquiry into the intention of Parliament at the time of law-making.

The RTI Bill, 2004 – which was the precursor to the RTI Act, 2005 – defined “public authority” as any authority or body constituted by the Constitution, Parliament, or notification/order by Government.   The National Advisory Council recommended to the Government that this definition  be modified to cover the States, Panchayati Raj institutions, and other local bodies.  The Parliamentary Standing Committee which considered the Bill had accepted this recommendation, and this led to the Government’s redrafting the definition as it is now found in the Act.  There is no evidence to suggest that the redrafting of the definition was prompted by the demand to include political parties within the ambit of the Act. 

The debate in both the Houses of Parliament ( Lok Sabha & Rajya Sabha) on the Bill between May 10 and 12, 2005, also does not suggest that Members had intended to include political parties within the expansive definition of public authorities.  It is unlikely that Parliament would have left it to the CIC to decide whether political parties could be considered as public authorities under the RTI Act.  The Supreme Court has held in catena of cases that if a statutory provision is open to more than one interpretation, the Court has to choose the one which represents the true intention of the Legislature. 

2 comments:

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zacarias said...

Could you please clarify what you mean when you say "Individual political parties do not qualify to be called institutions; party system does."

Isn't the intention of the interpretation given by the Delhi HC purely illustrative?